RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 December 2007
	DOCKET NUMBER:  AR20070010571 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


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	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his record be corrected to show he was promoted to pay grade E-5.

2.  The applicant states, in effect, that the medical company clerk told him he had seen orders promoting him from pay grade E-4 to E-5; however, he also states he believes the company commander had not signed the promotion orders.  He summarizes his request by stating that right now it directly affects the possible increase in his Federal retirement and VA (Department of Veterans Affairs) benefits plus the promotion grade E-5 that he is entitled to.

3.  In support of his application, the applicant provides a copy of his DD Form 214, Armed Forces of the United States Report of Transfer or Discharge; and a copy of a DD Form 215, Correction to DD Form 214, Armed Forces of the United States Report of Transfer or Discharge.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's record shows that he was inducted into the Army of the United States and entered active duty on 3 May 1968.  He was trained in and awarded military occupational specialty (MOS) 91B (Medical Specialist).

3.  The applicant served in Vietnam from 16 October 1968 through 19 October 1969, with Company C, 6th Support Battalion, 11th Infantry Brigade, and Company B, 23rd Medical Battalion, the Americal Division.

4.  The applicant was honorably released from active duty, on 1 May 1970, under the provisions of Army Regulation (AR) 635-200, at the expiration of his term of service.  He was separated in the rank and pay grade of Specialist Four (SP4), E-4.  On the date he was released from active duty, he had completed 1 year, 11 months, and 29 days active military service.

5.  Item 5a. (Grade, Rate or Rank), of the applicant's DD Form 214, shows he was released from active duty in the rank of SP4.  Item 5b. (Pay Grade) shows he held pay grade E-4 on the date he was released from active duty.

6.  The evidence shows the applicant was recommended for promotion to pay grade E-5 on 10 September 1969.  A request for a waiver of time in service was requested by his company commander on 11 September 1969.  A DA Form 2166, Enlisted Efficiency Report, was completed to support the recommendation for the applicant's promotion on 12 September 1969.  A DA Form 3356-R, Board Member Appraisal Worksheet, was completed giving the applicant 185 points; however, the appraisal worksheet is not signed and there is no indication, in the appropriate space on the form, if the applicant was recommended by the board member for promotion or not.  There is no evidence the applicant was given promotion list standing.

7.  The applicant served in Vietnam through 19 October 1969.  He was assigned to Fort Riley, Kansas, and to the 24th Infantry Division, to complete his active duty military service obligation.  On his arrival at Fort Riley, had he attained promotion list status, he would have been integrated onto that command's promotion list.  There is no indication the applicant was integrated onto any promotion list at Fort Riley, Kansas.

8.  There are no orders in the applicant's military personnel records promoting him to pay grade E-5 and there is no indication he was promoted to pay grade E-5 while he served on active duty.

9.  Item 2 (Grade), of the applicant's DA Form 20, Enlisted Qualification Record, shows he was serving in the rank and pay grade SP4, E-4, on the date of his release from active duty.  The applicant's date of rank was 15 January 1969.  Item 33 (Appointments and Reductions), of the applicant's DA Form 20, shows SP4, E-4, is the highest rank and pay grade the applicant served in while he was on active duty.

10.  On 27 April 1970, Special Orders Number 87, paragraph 3, was published by Headquarters, Fort Riley, releasing the applicant from the Army and transferring him to the US Army Reserve Control Group (Annual Training).  On 24 April 1974, Letter Orders Number 04-1163530, was published by the US Army Reserve Components Personnel and Administration Center, St. Louis, Missouri, discharging the applicant from the Standby Reserve.  He was discharged in the rank of SP4 effective 1 May 1974.

11.  AR 635-5, in effect at the time of the applicant's release from active duty, prescribed the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It established standardized policy for preparing and distributing the DD Form 214.  The instructions for the completion of Item 5 a. were, "Enter grade in which serving at time of separation, indicating whether permanent or temporary."

DISCUSSION AND CONCLUSIONS:

1.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  The evidence shows the highest verifiable rank and pay grade the applicant attained while he served on active duty was SP4, E4.  Items 2, 3, and 33 of the applicant's DA Form 20, are in agreement.  These items show the applicant's rank and pay grade on the date of his release from active duty was SP4, E4.

3.  Item 5a., 5b., and 6. of the applicant's DD Form 214, are in agreement with data items shown in the paragraph above.  These data items show he was released from active duty in the rank of SP4.

4.  The evidence does show the applicant was recommended for promotion to pay grade E-5; however, there is no indication he appeared before a promotion selection board and that he attained promotion list status.  A Board Member Appraisal Worksheet was completed giving the applicant 185 points; however, the appraisal worksheet is not signed and there is no indication, in the appropriate space on the form, he was recommended for or was not recommended for promotion by the board member, if he did in fact make an appearance before a promotion selection board.

5.  When the applicant arrived at Fort Riley, there is no evidence he was integrated into that command's promotion list or that he was promoted at that location.  Had he attained promotion list status while he served in Vietnam, he would have been integrated onto a promotion list at Fort Riley.

6.  There are no orders in the applicant's service personnel records promoting him to pay grade, E-5.  The applicant apparently was not aware of the promotion process and it appears he believed the promotion authority rested with his company commander.  It is apparent what the company clerk thought were promotion orders was the recommendation for promotion that is on file in the applicant's service personnel records.

7.  The special orders that were published to reassign the applicant to the US Army Reserve Control Group show the applicant's rank to be SP4.  The evidence also shows he was discharged from the Reserve in pay grade E-4. 

8.  In view of the foregoing, there is no basis for granting the applicant's request for a correction to his DD Form 214 to show he was released from active duty in pay grade E-5.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_x___  __x__  ___x__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




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          CHAIRPERSON


INDEX

CASE ID
AR20070010571
SUFFIX

RECON

DATE BOARDED
20071206
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
129.0000
2.
129.0500
3.
131.0000
4.
110.0000
5.

6.